The Day the Supreme Court Quoted My Book





Mr. D'Emilio is Professor of History and Director of the Gender & Women's Studies Program at the University of Illinois at Chicago. His biography of Bayard Rustin (Lost Prophet: The Life and Times of Bayard Rustin) will be published next month by Free Press.

It isn't every day that a Supreme Court justice quotes my work in a decision. But that's what happened this past June when Justice Arthur Kennedy delivered the majority opinion in Lawrence v. Texas, a challenge to the state's sodomy law. In finding that the law violated vital liberties and privacy guaranteed by the due process clause of the 14th Amendment, the court declared sodomy statutes unconstitutional. Even though only 13 states still had sodomy laws, the decision is hugely important. In describing why these laws violate the most basic notion of liberty, Justice Kennedy used words such as "transcendent" and "dignity" when referring to intimate same-sex relationships. For those who have lived under the heavy stigma of criminality, such language was bracing. It is neither hyperbolic nor cliched to say that the decision marks a dramatic turning point for gay men and lesbians in the United States. And it was a dizzying, heady moment for me when I saw the citation and quote from Intimate Matters: A History of Sexuality in America, that I and Estelle Freedman co-authored.

The Lawrence case is especially notable because, in 1986, in Bowers v. Hardwick, the court had come to precisely the opposite conclusion. Then it upheld Georgia's sodomy statute. In Bowers it found that the proscriptions against sodomy had "ancient roots" and that the Constitution self-evidently did not confer "a fundamental right upon homosexuals to engage in sodomy."

Seventeen years is not a long time in the life of a nation, and certainly not so long that one would expect so dramatic a reversal in legal interpretation. Many things had changed, of course. The composition of the court is different [though many would argue that it has only grown more conservative in the intervening time]. Gays and lesbians have become far more visible and integrated into civic life and popular culture. Public opinion about homosexuality has shifted.

The list of such changes is long, and among them is a vast body of historical scholarship on sexuality that did not exist in 1986. In some ways this may have proved as crucial as any other factor in the shape of the decision. Reading Kennedy's opinion on the morning it was issued, I was struck by the extent to which he constructed a specifically historical argument to counter the opinion in Bowers and justify its reversal. "Oh my god," I thought. "History really does matter."

That Kennedy had turned to history was no accident. A group of historians had filed a brief in support of the plaintiff. George Chauncey of the University of Chicago took the lead role, working closely with the lawyers and writing the drafts that he then circulated among the rest of us for criticism, refinement, and deeper documentation. Kennedy (or at least his legal clerks!) seemed to have read not only the brief but also some of the scholarship that it distilled, because the accounting of history that the decision provided would have made a history professor proud.

In particular, the court seemed to "get" two key elements of the argument that we made. We could not claim, of course, that sodomy laws did not have a long history. But the scholarship of the last two decades could let us do something that historians are good at: provide deep context for "the facts." Yes, the colonies prohibited sodomy, but these statutes existed within a broad matrix of laws that prohibited, and quite severely punished, virtually all sexual conduct that was nonmarital or nonprocreative. Most of these legal prohibitions have since fallen away; the court itself has struck down laws prohibiting access to contraceptives for both the married and unmarried. In this reading, the continued existence of sodomy laws is anomalous and stands outside the stream of U.S. history.

Historical scholarship also allowed us to alert the court to something else: while sodomy laws may be old, they have mostly been unused. The state has not made much effort to pursue men who have sex with men until, that is, the mid-twentieth century. Then, state agencies at every level of government roused themselves to pursue, identify, harass, arrest, and institutionalize gay men and lesbians. From Congress and the Executive Branch down to the local vice officer, queers became the target of intense state persecution. The point: rather than the ancient tradition so confidently described in Bowers v. Hardwick, there has been a unique virulence to American homophobia in the recent past.

Finally, central to the enterprise of historical research on sexuality has been the much bandied about notion of "social construction." Rather than seeing sexuality primarily in biological terms and then describing how it has been fought over, most historians in the field look toward the more decisively shaping powers of culture, social structure, and economic systems to understand human sexuality. When Justice Kennedy quoted Intimate Matters ("The modern terms homosexuality and heterosexuality do not apply to an era that had not yet articulated these distinctions."), he really seemed to get it. That is, sodomy laws mean something profoundly different today than they did in the seventeenth century. To criminalize same-sex relations today is to strike at the integrity of a human being - to violate core constitutional notions of liberty and privacy - in a way that was likely not true when those statutes were written centuries ago.

Yes: June 26th was a deeply satisfying day for me.

Related Links

  • Stephen A. Allen,"Did Gays Get All They Want from the Supreme Court? (Really?)" (HNN)

  • The Historians' Case Against Gay Discrimination


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    Nathaniel Livingston, Jr. - 8/1/2003

    The Coalition For A Just Cincinnati - PRESS RELEASE
    August 1, 2003

    CONTACT:
    Coalition For A Just Cincinnati
    Nathaniel Livingston, Jr.
    (513) 235-4945
    NateLivingston@BoycottCincinnati.org

    Steven McDaniel
    (513) 961-3589
    srm20102003@yahoo.com

    Amanda E. Mayes
    AmandaEMayes@BoycottCincinnati.org

    Xavier University
    President Michael J. Graham
    (513) 745-3502

    The Sean Hannity Show
    (212) 613-3807 or (212) 268-5730

    Council on American-Islamic Relations
    (202) 488-8787

    SEAN HANNITY PROTEST PLANNED

    (CJC : Xavier University Unfair For Canceling Farrakhan Speech But Allowing Hannity)

    Cincinnati, OH – The Coalition For A Just Cincinnati (CJC) today announced plans to picket Sean Hannity during his upcoming appearance in Cincinnati, Ohio, as part of his Hannitizing America Tour on Friday, August 8, 2003 at 7:00 p.m. at Xavier University’s Cintas Center. The CJC also accused Xavier University of exhibiting a double standard regarding controversial speakers on campus.

    In a letter released today (available at http://www.boycottcincinnati.org), CJC co-chair Nathaniel Livingston, Jr. asked Hannity to reconsider coming to Cincinnati because of the Cincinnati Boycott. Hannity discussed the issue with Livingston Wednesday, July 30, 2003 on his nationally syndicated radio show but declined to cancel his visit.

    The CJC then asked Xavier University president Michael Graham to intervene and cancel the event because Graham cancelled a satellite telecast featuring Nation of Islam leader Louis Farrakhan in February, 2003 after saying Farrakhan’s speech didn’t offer a “variety of perspectives” and because Farrakhan’s message was “perceived by many as divisive.”

    The CJC points out that in September, 2002, the Council on American-Islamic Relations (CAIR) accused Hannity of participating in a pattern of anti-Muslim bias and promoting anti-Muslim hate. More specifically, CAIR accused Hannity, who also co-hosts Fox News Channel’s “Hannity & Colmes” program, of encouraging televangelist Pat Robertson to make insensitive remarks during an appearance on Hannity’s television show. Robertson reportedly called Islam “a monumental scam”; the Quaran “a theft of Jewish theology”; and the Muslim prophet Muhammad a “wild-eyed fanatic”, a “robber and a brigand”, and “a killer”!

    Livingston said, “Graham needs to explain why he is allowing Hannity, who is perceived by many as divisive, to appear on campus, after refusing to allow Farrakhan to appear. There is a clear double standard here. Farrakhan is Black, Hannity is white. Jews don’t like Farrakhan’s statements, Muslims don’t like Hannity’s statements. What’s the difference? Xavier shouldn’t sanction anti-Islamic hate.”

    Formed in June, 2001, the CJC is a coalition of religious, civil rights, social justice, and labor rights organizations and activists who call for a Boycott of Cincinnati. For more information call (513) 235-4945 or email us at CJC@BoycottCincinnati.org.

    ###


    Alvin Brinson - 7/19/2003

    Sorry, got interrupted earlier and somehow it submitted accidentally.

    Reading this brings me back to why I study history - and I think that it is something so many people miss.

    History matters because understanding society matters. Not in some ephemeral sense of metaphysics, but in daily life. Understanding of history affects our laws, our practices, is a key point that many people are missing when they study history.

    Who did what individually isn't important. Nor, really, is who fought who. What is important is what, as a people, we did and why we fought. If we do not understand that, we do not have the capacity to function as complete enlightened individuals of modern society.


    Alvin Brinson - 7/19/2003

    Reading this brings me back to why I study history - and I think that it is something so many people miss.

    History matters because understanding society matters. Not in some ephemeral sense of metaphysics, but in daily life. Understanding of history affects our laws, our practices,


    Clayton E. Cramer - 7/16/2003

    There's really three possible arguments that could be advanced against the Texas sodomy law:

    1. It's a right protected by privacy--which the Court seems not to have advanced, although it underlies Griswold--a decision that specifically rejected its application to homosexual sex.

    2. It's a right protected by liberty--that homosexual sodomy was not illegal in 1791 or 1868--only sodomy in general. This is the argument that Kennedy used. It's incorrect, because at least three colonies (Plymouth, Connecticut, and New York, under the Duke of York's 1665 laws) prohibited homosexual sodomy specifically. You could advance this claim based on the majority of colonies not criminalizing specifically homosexual sodomy, but that's not the argument that either the brief or the decision made. They both made a categorical statement that colonial sexual regulation didn't ban homosexual sodomy specifically.

    3. You could make the argument that bans on homosexual sodomy were part of a larger scheme for prohibiting non-procreative sex, or even for prohibiting sex outside what the Framers would have understood as "Judeo-Christian sex." Once the rest of this mosaic disappears, laws banning homosexual sex in particular are hypocritical, or illogical, or a violation of equal protection. This is a plausible argument, but the statute in question struck down not just the Texas sodomy law, but also the laws of states like Idaho, which ban homosexual sodomy, heterosexual sodomy, and bestiality, in a single statute--and one that is essentially the sort of law that, by this argument, would be constitutional. More importantly, Justice Kennedy's opinion explicitly rejected using equal protection as a basis for striking down the law.

    Justice Kennedy's decision wasn't about the Constitution. It was: "We find laws like this icky, and we don't like them."


    Rick Perlstein - 7/16/2003

    ...shame on me, shame me twice, won't get fooled again.

    Clayton Cramer is right that I made what the Washington Post thankfully calls a minor mistake about the 14th Amendment. They'll be running a correction line tomorrow. Meanwhile, this advances Cramer's point not a bit. Justice Kennedy indeed based his decision not on the 14th's equal protection clause but under its due protection clause (I allowed myself to be misinformed that the latter was a way of referring to the former). But he based that argument on the same historical materials all the same. Availing himself of a test from the 1977 decision Moore v. West Cleveland (or is it East Cleveland?) that for a privacy right like the one under consideration to be denied proscriptions against it must possess "ancient roots." Same game: the historians still demonstrated that to Justice Kennedy's, and my, satisfaction, that it does not.

    I fear Cramer still misses the point. In order for his case to hold water he has to show that there was a colony or colonies that outlawed sex between members of the same sex in its criminal codes but NOT any other kind of non-procreative sex. Of course these laws in a certain sense "specify" homosexual sodomy; in the same way a criminal code "specifies" widge-stealing if it enumerates that stealing a widget is punishable by 2-5 years in jail, that stealing a blodget is also punishable by 2-5 years in jail, and stealing a whatzit is punishable by 2-5 years in jail. He says he has found what he's looking for in colonial Pennsylvania. If their criminalcode outlawed sex between men but not the Sin That Santorum Dared Name he's on to something. Did William Penn countenance bestiality? If so, that's an interesting discussion in itself. But I suspect it still leaves those who would adopt Cramer's argument with a logical problem. Colonial statutes certainly outlaw buggery. But how many outlaw woman lying with woman as she would lie with man? If they don't, then by Cramer's logic plaintiffs Lawrence and Guyton, Constiutionally speaking, can be arrested, but the chicks they double dated with could not.

    Cramer has graciously thanked me for my constructive criticisms. I have one more. If he wants to argue about Moore v. East/West Cleveland's doctrine, I am defenseless: my jurisprudential inclinations and expertise have already stretched and snapped beyond the taffy point. But I fear--though I don't rule out the possibility of the contrary--the substance of his historical criticism fast approaches the vanishing point. Lazy and opportunistic gay historians? Prove it.


    Clayton E. Cramer - 7/16/2003

    Mr. Perlstein has one theory about what the sentence in the brief means; I have another reading of it. But guess what? Of the nine justices on the Supreme Court, five of them read it the way I did--only one read it the way Mr. Perlstein does.

    There are two arguments that were advanced for what was wrong with the Texas sodomy law. The first argument is that the sodomy laws applied equally to all, and were part of the broader mosaic of law against non-procreative sex. Since the rest of these laws have since gone away, a law aimed specifically at homosexuals violates equal protection. At least, that's the argument that Perlstein advanced in the email that I just received.

    The problem is: only one justice used the equal protection argument, and that was O'Connor, in her concurrence. Kennedy's opinion specifically rejects equal protection, and insists that this is a liberty argument. Instead, they insisted that: "Thus early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit non-procreative sexual activity more generally. This does not suggest approval of homosexual conduct. It does tend to show that this particular form of conduct was not thought of as a separate category from like conduct between heterosexual persons..... But far from possessing 'ancient roots,' Bowers , 478 U.S., at 92,American laws targeting same-sex couples did not develop until the last third of the 20th century." So most of the Supreme Court read the brief the same way that I did--that there were no laws aimed specifically at homosexual sodomy--and there were. By the way, I found some such laws that are aimed specifically at homosexual sodomy in colonial Pennsylvania.


    Rick Perlstein - 7/16/2003

    Please excuse the lapses in good taste below. This is not about sodomy, whose varieties rhetoric forces me, with unfortunate gaucheness, to enumerate below, but about demolishing Clayton Cramer's insistence, without evidence, that the Supreme Court "relied on a false claim about the state of colonial sexual regulation." It's all too bad, because Cramer's work in the "Arming America" case was exemplary.

    But to the present case: Shame on Cramer. He made his 10:20 AM July 15 post above after I carefully explained to how he had made an absolute logical hash of the historical reasoning in Lawrence v. Texas. I was glad to see he granted my every point. But he has his cake, he eats his cake, he gets caky mess all over the place, when he still insists: "But some of the colonies did prohibit male-male sex specifically." What he means, I suppose,is that the laws would have one paragraph banning man-beast sex, then one paragraph banning some kind of sodomy between man and women, then sex between men...and calls this probhibiting "male-male sex specifically," even though the punishments listed for them were the same.

    By this precious reading he misses the logic of the court's historical as a whole. Roughly it makes two steps, claiming 1) once upon a time sodomy laws outlawed all manner of non-procreative sex, then 2) come the 1970s some sodomy laws were created that outlawed ONLY homosexual sex. It is the contrast between the "old" sodomy laws and these new ones which is the relevant point--along with other points orthogonal to correcting Cramer's present misapprehension.

    Sayeth the court: "Colonial sexual regulation included such non-procreative acts as masturbation, and sodomy laws applied equally to male-male, male-female, and human-animal sexual activity." Cramer has to do a lot more work to prove otherwise; and even then I'm not sure the critique would be relevant.

    That's the shame. For despite all that, he still insists that the Court--and by extension the historians they cited--made false claims. By continuing to so insist, his error will spring legs and scatter throughout land. Oh, these new crustaceans of political correctness, who with our president seem prepared to jettison decent canons of logic and evidence to discount historical findings they find inconveninent!


    Clayton E. Cramer - 7/15/2003

    What the brief says, however, is: "Colonial sexual regulation included such non-procreative acts as masturbation, and sodomy laws applied equally to male-male, male-female, and human-animal sexual activity." That's what I am objecting to--the statement is incorrect. Some of the colonies used Henry VIII's buggery statute, and this applied equally to "male-male, male-female, and human-animal" sex. But some of the colonies did prohibit male-male sex specifically.

    Now, the claim that sodomy laws--even homosexual sodomy laws--were part of a larger matrix of laws prohibiting sex outside of intercourse--is true. I can understand the argument that doing what Texas did--repealing sodomy laws for heterosexuals, and even repealing bestiality laws, but leaving homosexual sodomy laws in place--shows that Texas wasn't motivated by any form of traditional religiously based morality. (Of course, if they had, the Supreme Court would have held that against the law.) But that's not what the Supreme Court decided; they decided that there was a liberty to engage in these acts, and relied on a false claim about the state of colonial sexual regulation as part of that argument.


    Josh Greenland - 7/15/2003

    ""Yes, the colonies prohibited sodomy, but these statutes existed within a broad matrix of laws that prohibited, and quite severely punished, virtually all sexual conduct that was nonmarital or nonprocreative."

    "The claim that the colonial laws against sodomy were not specific to homosexuals is simply incorrect for at least two colonies (the two that were easiest to check)."

    Clayton, I don't see what the statements in the two paragraphs have to do with each other. Specifically anti-homosexual sodomy laws existed, but the first quoted paragraph never said they didn't. It just said that during the colonial period they always existed with other laws that together banned just about every type of non-marital and non-procreative sexual act, making the anti-homosexual sex laws "just another brick in the wall."


    Clayton E. Cramer - 7/14/2003

    "Yes, the colonies prohibited sodomy, but these statutes existed within a broad matrix of laws that prohibited, and quite severely punished, virtually all sexual conduct that was nonmarital or nonprocreative."

    The claim that the colonial laws against sodomy were not specific to homosexuals is simply incorrect for at least two colonies (the two that were easiest to check). The Connecticut Code of 1650 punished homosexual sex quite separately from bestiality. See Public Records of the Colony of Connecticut 1:77--two completely separate crimes.

    Ditto for the Book of the General Laws of the Inhabitants of the Jurisdiction of New-Plimouth... (Cambridge: Samuel Green, 1672). Under capital crimes, chapter 2: the statute prohibiting bestiality is completely separate from the statute that prohibited homoseuxal sodomy--and yes, it punished specifically homosexual sodomy. It did not roll all the laws against non-procreative sex into a single statute.

    "9. If any Person lyeth with a beast or Bruit Creature, by Carnal Copulation, they shall surely be put to Death, and the Beast shall be slain and buried and not eaten.

    "10. If any Man lyeth with Mankinde, as he lyeth with a Woman, both of them have committed Abomination; they both shall surely be put to Death, unless the one part was forced, or be under fourteen years of Age: And all other Sodomitical filthiness, shall be surely punished according to the nature of it."
    The same statutes appear in The Book of the General Laws of the Inhabitants of the Jurisdiction of New-Plimouth... (Boston: Samuel Green, 1685).

    Perhaps they didn't mean "homosexuality" when they said "Sodomitical," but when read examples of two guys being whipped, branded, and expelled from Plymouth for what is clearly homosexual behavior--although not sodomy--it's hard to take seriously these claims.

    There are also some reasons to suspect "problems" with other claims in the brief that the Supreme Court swallowed without examining carefully. "The trial of Nicholas Sension, a married man living in Westhersfield, Connecticut, in 1677, revealed that he had been widely known for soliciting sexual contacts with the town’s men and youth for almost forty years but remained widely liked."

    Nicholas Senchon (apparently the same guy) is listed in Public Records of the Colony of Connecticut--but as a freeman of Windsor in October of 1669 (http://www.colonialct.uconn.edu/ViewPageBySequentialID.cfm?v=02&p=524&c=4&StartVolume=1&StartPage=1). If he had been soliciting sexual contacts with the town's men and youth for almost forty years, it must have been while visiting from Windsor.

    See http://www.claytoncramer.com/weblog/2003_07_06_archive.html#105785781936828617 for more, with links to images of the source documents that contradict this set of claims.